W. v. Paley

Case: 21-20671 Document: 00516875435 Page: 1 Date Filed: 08/28/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

August 28, 2023

No. 21-20671 Lyle W. Cayce

____________ Clerk

J.W.; Lori Washington, as next friend J.W.,

Plaintiffs—Appellants,

versus

Elvin Paley; Katy Independent School District,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-1848

______________________________

Before Graves, Willett, and Engelhardt, Circuit Judges.

Don R. Willett, Circuit Judge:

A school resource officer tased a special-needs student who physically

struggled with school staff while attempting to leave school following a

violent episode. The student’s mother sued the officer and the school

district, bringing constitutional claims under 42 U.S.C. § 1983 and disability

discrimination claims under the Americans with Disabilities Act and the

Rehabilitation Act. We conclude, based on recent Supreme Court precedent,

that the district court incorrectly subjected the disability discrimination

claims to administrative exhaustion. On the merits, however, the district

court correctly granted summary judgment to the officer and school district.

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Plaintiffs have not shown that the officer intentionally discriminated based

on the student’s disability. The district court also correctly denied Plaintiffs’

claim alleging that the tasing amounted to excessive corporal punishment in

violation of the substantive due process clause of the Fourteenth

Amendment. We AFFIRM.

I

A

The underlying facts are disturbing. In November 2016, Jevon

Washington1 was a 17-year-old special-needs student at Mayde Creek High

School in the Katy Independent School District (KISD) in Katy, Texas. He

was diagnosed with “an intellectual disability” and “an emotional

disturbance” that impact “his daily functioning, his ability to communicate,

control his emotions, and access regular educational services without

accommodations.” At the time, Jevon was around 6’2” and weighed 250

pounds.

On the day of the incident, Jevon and a fellow special-needs student

finished their class assignment and proceeded to play a card game. After

some verbal taunting from the student, Jevon became angry, and according

to a faculty member, punched the student in the chest before storming out of

the classroom.

Jevon tried to enter what he called his “chill out” room—a designated

classroom that the school permitted him to use, under his academic

accommodations, when he needed to regulate his emotions. Finding the

room occupied by another student, Jevon became even more frustrated. A

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1

Because this case involves events that occurred when Jevon was a minor, the case

caption and initial district court filings referred to him by his initials to protect his identity.

Now that his name has been disclosed, we refer to him by his full name.

2

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staff member witnessed Jevon throw a desk across the room before kicking

the door and heading toward the school exit. He was stopped in the

breezeway by a security guard, a school resource officer, an athletic coach,

and the assistant principal.

Soon after, the individual Defendant, school resource officer Elvin

Paley, heard a request for assistance over the school radio and arrived on the

scene. Officer Paley had never interacted with Jevon before but said in his

declaration that he “knew [Jevon] was probably a special needs student . . .

but [he] did not know anything about [Jevon’s] specific disability or

limitations.” Officer Paley did not witness the earlier incident in which Jevon

punched his classmate but said that he had previously “witnessed [Jevon]

leave class, curse at teachers, and punch the concrete hallway walls.”

Officer Paley’s body camera captured most of the subsequent events

in the breezeway. Officer Paley watched from a short distance away as Jevon

paced in front of the exit door, explaining to staff that he wanted to walk home

so he could calm down. The video shows Security Guard John Oglesby

standing in front of the door, attempting to orally de-escalate the situation by

asking what happened and suggesting that Jevon go to his designated

classroom to calm down. Jevon only became more agitated, responding to

Guard Oglesby with profanities. When Jevon pushed against the exit door, a

struggle ensued at the door with Guard Oglesby attempting to hold the door

shut to keep Jevon inside.

Officer Paley moved toward Jevon and Guard Oglesby, with the body

camera footage going dark as he pushed up against Jevon’s body. Both Officer

Paley and Guard Oglesby told Jevon to calm down several times. Officer

Paley threatened to tase Jevon, and a voice is heard saying, “You are not

going to get through this door, just relax.” Jevon then began screaming that

he wanted to go home.

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As Officer Paley moved away from Jevon, the video becomes clear

again, showing Guard Oglesby and a female school resource officer struggling

to hold Jevon in the doorframe as he tried to slip through. Officer Paley told

the staff members to “let him go,” and as Jevon walked outside, Officer Paley

fired his taser. Jevon screamed and fell to his knees. With Jevon on his knees,

Officer Paley continued to tase Jevon, using a “drive stunning” method.2

Officer Paley used the taser for approximately 15 seconds total, continuing to

tase Jevon in the back even after he was lying facedown on the ground and

not struggling.

As a result of the tasing, Jevon urinated, defecated, and vomited on

himself. Officer Paley commanded Jevon to put his hands behind his back

while the female officer handcuffed him. School officials called the school

nurse and subsequently the paramedics to treat Jevon. They then contacted

Jevon’s mother, Lori Washington.

Quite understandably, the family struggled in the aftermath, with Ms.

Washington keeping Jevon home from school for several months because she

feared for his safety at school and because the tasing caused him intense

anxiety and PTSD.

B

After an unfruitful meeting between Ms. Washington and the school

district, Ms. Washington filed a petition against the school district with the

Texas Education Agency under the procedures provided in the Individuals

with Disabilities Education Act (IDEA). In addition to the IDEA claims, the

petition included constitutional claims under 42 U.S.C. § 1983 along with

_____________________

2

To “drive stun” means to hold the taser against the body without deploying the

prongs.

4

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claims under Title II of the Americans with Disabilities Act (ADA) and §

504 of the Rehabilitation Act (§ 504).

KISD responded by arguing, in part, that the hearing officer did not

have jurisdiction over the non-IDEA claims. The hearing officer agreed and

dismissed all non-IDEA claims for lack of jurisdiction. Likewise, the hearing

officer dismissed the IDEA claims on timeliness grounds.

Ms. Washington, on behalf of Jevon (collectively “Plaintiffs”), sued

KISD and Officer Paley (collectively “Defendants”) in federal district

court, again asserting claims under the ADA and § 504 against KISD, as

well as § 1983 claims under the Fourth and Fourteenth Amendments against

Officer Paley.3 Plaintiffs sought compensatory and punitive damages along

with attorney fees.

Defendants jointly moved for summary judgment. The district court

denied summary judgment on the § 1983 Fourth Amendment excessive force

claim against Officer Paley but granted summary judgment to Defendants on

all other claims. The district court held that: (1) Plaintiffs’ ADA and § 504

claims were precluded for failure to exhaust administrative procedures; (2)

alternatively, Plaintiffs’ ADA and § 504 claims failed on the merits; (3)

Plaintiffs’ § 1983 Fourteenth Amendment substantive due process claim was

precluded under our precedent in Fee v. Herndon;4 and (4) Officer Paley was

not entitled to qualified immunity on the § 1983 Fourth Amendment

excessive force claim because of genuine and material factual disputes. The

_____________________

3

Plaintiffs originally asserted § 1983 claims against KISD but later abandoned

them. They also asserted a claim under the Texas Constitution against Officer Paley, but

the district court granted summary judgment on that claim, and it is not at issue in this

appeal.

4

900 F.2d 804 (5th Cir. 1990), cert. denied, 498 U.S. 908 (1990).

5

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district court rejected Plaintiffs’ motion for reconsideration as to their ADA

and § 504 claims.

Defendants challenged the district court’s denial of qualified

immunity on the Fourth Amendment excessive force claim in an

interlocutory appeal to this court, and we reversed in an unpublished

opinion.5 Plaintiffs’ requests for a panel rehearing and rehearing en banc were

denied.6

Plaintiffs timely appealed the district court’s grant of summary

judgment to Defendants on the disability discrimination claims and the

§ 1983 Fourteenth Amendment substantive due process claim. Specifically,

Plaintiffs argue on appeal that the district court erred by: (1) subjecting their

disability discrimination claims under the ADA and § 504 to the IDEA

exhaustion requirement; (2) concluding that their disability discrimination

claims were not viable on the merits; and (3) barring Plaintiffs’ substantive

due process claim based on a misreading of our precedent in Fee.

II

“We review a grant of summary judgment de novo, viewing all

evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor.”7 Summary judgment is

appropriate only when the moving party establishes that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”8

_____________________

5

J.W. v. Paley, 860 F. App’x 926 (5th Cir. 2021) (per curiam).

6

Order, J.W. v. Paley, No. 19-20429 (5th Cir. Nov. 18, 2021).

7

Pierce v. Dep’t of the Air Force, 512 F.3d 184, 186 (5th Cir. 2007) (italics omitted).

8

Fed. R. Civ. P. 56(a).

6

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III

In its summary judgment ruling and subsequent denial of Plaintiffs’

motion for reconsideration, the district court held that Plaintiffs were

required to exhaust administrative procedures under the IDEA before

bringing their ADA and § 504 claims in district court. Plaintiffs contend that

their ADA and § 504 claims are not subject to the IDEA’s exhaustion

provision.9 With the helpful guidance of recent Supreme Court precedent,

we agree with Plaintiffs.

The IDEA aims to ensure that children with disabilities receive

special education services.10 It does so by offering federal funds to states in

exchange for a commitment to furnish a “free appropriate public education”

to children with certain disabilities.11 It also provides procedural safeguards

that parents can use when they disagree with the school regarding their

child’s education.12 Specifically, a parent may file a complaint with a state or

local agency,13 and after an initial mandatory meeting,14 may proceed to a

“due process hearing” before an impartial hearing officer,15 followed by an

appeal to the state education agency (if the initial complaint was filed

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9

Plaintiffs also argue: (1) that Defendants should be judicially estopped from

relying on the IDEA exhaustion requirement because they previously made contradictory

arguments in the IDEA due process hearing; and (2) that exhaustion would be futile. Due

to the Supreme Court’s clear guidance on IDEA exhaustion, we decline to address these

arguments.

10

Fry v. Napoleon Cmty. Schs., 580 U.S. 154, 158 (2017).

11

Id.; 20 U.S.C. § 1412(a)(1).

12

Fry, 580 U.S. at 159.

13

See 20 U.S.C. § 1415(b)(6).

14

Id. § 1415(f)(1)(B)(i).

15

Id. § 1415(f)(1)(A).

7

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locally).16 Only after exhausting that process can a parent seek judicial review

by filing a civil action in state or federal court.17

Importantly for our purposes, the IDEA contains an exhaustion

requirement for certain claims brought under laws that may overlap with the

IDEA, including the ADA and Rehabilitation Act:

Nothing in [the IDEA] shall be construed to restrict or limit

the rights, procedures, and remedies available under the

Constitution, the [ADA], title V of the Rehabilitation Act

[including § 504], or other Federal laws protecting the rights of

children with disabilities, except that before the filing of a civil

action under such laws seeking relief that is also available under

[the IDEA], the [IDEA’s administrative procedures] shall be

exhausted to the same extent as would be required had the

action been brought under [the IDEA].18

At the time this appeal was filed, our precedent applied this

exhaustion requirement even to suits seeking remedies not provided by the

IDEA, such as compensatory damages.19 But prior to oral argument, the

Supreme Court granted certiorari in Perez v. Sturgis Public Schools,20 and we

granted Plaintiffs’ motion to place this appeal in abeyance, acknowledging

the potential impact of Perez on the application of IDEA exhaustion.21

_____________________

16

See id. § 1415(g).

17

See id. § 1415(i)(2)(A).

18

Fry, 580 U.S. at 161 (alteration in original) (quoting 20 U.S.C. § 1415(l)).

19

McMillen v. New Caney Indep. Sch. Dist., 939 F.3d 640, 648 (5th Cir. 2019)

(“[B]ecause the IDEA can remedy the failure to provide a blind student with a reader by

giving her one, a suit seeking damages for such a failure must first exhaust the IDEA’s

administrative procedures.”).

20

143 S. Ct. 81 (Mem) (granting certiorari).

21

Order, J.W. v. Paley, No. 21-20671 (5th Cir. Oct. 3, 2022). In their motion to

reconsider abatement, Defendants argue that Plaintiffs have forfeited any argument that

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The Supreme Court’s recent decision in Perez provides unmistakable

new guidance.22 Interpreting the word “relief” in the IDEA’s exhaustion

provision as synonymous with “remedies,” the Court held that because the

IDEA’s exhaustion requirement applies only to suits that “seek[] relief . . .

also available under” the IDEA,23 it does not apply “when a plaintiff seeks

a remedy IDEA cannot provide.”24 As the plaintiff in Perez sought

compensatory damages, a remedy both sides agreed was unavailable under

the IDEA, his claim was not subject to the IDEA’s exhaustion

requirement.25

Similarly here, Plaintiffs seek compensatory and punitive damages.26

The IDEA provides neither. Thus, Plaintiffs can proceed without

exhaustion.

_____________________

suits for remedies not available under the IDEA are exempt from the IDEA exhaustion

requirement because Plaintiffs only raised the issue in a “passing footnote.” Indeed, in

their opening brief, Plaintiffs acknowledge in a footnote that the argument is foreclosed by

our decision in McMillen, but “reserve the right to challenge that holding en banc or in a

petition for certiorari to the Supreme Court.” We hold that this was sufficient to preserve

the argument in the event of intervening Supreme Court precedent. See United States v.

Pineiro, 377 F.3d 464, 467 (5th Cir. 2004) (holding that an argument was preserved for

review in light of intervening Supreme Court precedent when appellant conceded the

argument was foreclosed by circuit precedent but raised it in his brief only to “preserve it

for further review”), cert. granted, vacated on other grounds, Pineiro v. United States, 543 U.S.

1101 (2005).

22

Perez v. Sturgis Pub. Schs., 598 U.S. 142 (2023).

23

Id. at 863.

24

Id. at 865.

25

Id. at 863–64.

26

Plaintiffs also seek attorney fees. Attorney fees are an available remedy under the

IDEA, see 20 U.S.C. § 1415(i)(3)(B), and Perez indicates that requests for remedies

provided by the IDEA may be subject to exhaustion even if included in an action that also

requests damages. Perez, 598 U.S. at 150 (“[A] plaintiff who files an ADA action seeking

both damages and the sort of equitable relief IDEA provides may find his request for

9

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Plaintiffs also contend that the district court erred in holding that their

ADA and § 504 claims against KISD fail on the merits. We disagree. The

district court properly granted summary judgment to KISD on the merits of

the ADA and § 504 claims because Plaintiffs failed to produce evidence of

intentional discrimination.

A

Title II of the ADA provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.”27 Section 504 of

the Rehabilitation Act of 1973 provides, in relevant part:

No otherwise qualified individual with a disability in the United

States, as defined in section 705(20) of this title, shall, solely by

reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted

by any Executive agency or by the United States Postal

Service.28

“The language in the ADA generally tracks the language set forth in

[§ 504].”29 And the ADA expressly provides that “[t]he remedies,

procedures, and rights” available under the Rehabilitation Act are also

_____________________

equitable relief barred or deferred if he has yet to exhaust [IDEA procedures].”).

However, it would be nonsensical to apply the exhaustion requirement solely to the

attorney fees request because Plaintiffs’ request for attorney fees is inextricably intertwined

with the ADA and § 504 claims for compensatory and punitive damages they bring.

27

42 U.S.C. § 12132.

28

29 U.S.C. § 794.

29

Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir. 2002).

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accessible under the ADA.30 Thus, we “equate[] liability standards under

§ 504 [of the Rehabilitation Act] and the ADA.”31

To establish a prima facie case under either statute, a plaintiff must

show:

(1) that he is a qualified individual . . . ; (2) that he is being

excluded from participation in, or being denied benefits of,

services, programs, or activities for which the public entity is

responsible, or is otherwise being discriminated against by the

public entity; and (3) that such exclusion, denial of benefits, or

discrimination is by reason of his disability.32

“The only material difference between [§ 504 and Title II of the ADA] lies

in their respective causation requirements.” 33 Section 504 requires that the

plaintiff’s disability be the “sole reason” for the exclusion or denial of

benefits, but the ADA’s standard is less stringent.34

The ADA and § 504 provide for vicarious liability. This means that a

plaintiff need not identify an official policy to sustain a claim against a public

entity as it may be held vicariously liable for the acts of its employees under

either statute.35

Plaintiffs can only recover damages under the ADA or § 504 upon a

showing of intentional discrimination.36 While we have not “delineate[d] the

_____________________

30

42 U.S.C. § 12133.

31

D.A. ex rel. Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010).

32

T.O. v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 417 (5th Cir. 2021) (alteration in

original) (quoting Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671–72 (5th Cir.

2004)).

33

Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005).

34

Id. (quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503 (5th Cir. 2002)).

35

See Delano-Pyle, 302 F.3d at 574–75.

36

Id. at 574.

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precise contours” of this intentionality requirement, our “cases to have

touched on the issue require something more than deliberate indifference.” 37

“Of course, this standard is met under circumstances revealing a

discriminatory motive.”38

Because disparate treatment and failure-to-accommodate claims

under the ADA and § 504 are distinct,39 the intentionality standard looks

different for each of them. Our case law provides more guidance for failure-

to-accommodate claims than disparate treatment claims. For a failure-to-

accommodate claim specifically, “intentional discrimination requires at least

actual knowledge that an accommodation is necessary.” 40 The requisite

notice comes from the plaintiff’s request for an accommodation or from facts

establishing that “‘the disability, resulting limitation, and necessary

reasonable accommodation’ were ‘open, obvious, and apparent’ to the

entity’s relevant agents.”41 Notice beyond merely notice of the disability is

required because “[t]he ADA [and § 504] do[] not require clairvoyance.”42

“[K]nowledge of a disability is different from knowledge of the resulting

limitation” and “certainly is different from knowledge of the necessary

accommodation.”43 When a disability is mental, rather than physical, the

_____________________

37

Cadena v. El Paso Cnty., 946 F.3d 717, 724 (5th Cir. 2020) (internal quotations

omitted) (quoting Miraglia v. Bd. of Supervisors of La. State Museum, 901 F.3d 565, 575 (5th

Cir. 2018)).

38

Wilson v. City of Southlake, No. 21-10771, 2022 WL 17604575, at *6 (5th Cir. Dec.

13, 2022) (per curiam).

39

Windhauser v. Bd. of Supervisors for La. State Univ. & Agric. & Mech. Coll., 360 F.

App’x 562, 565 (5th Cir. 2010) (per curiam).

40

Smith v. Harris Cnty., 956 F.3d 311, 319 (5th Cir. 2020).

41

Windham v. Harris Cnty., 875 F.3d 229, 237 (5th Cir. 2017) (citation omitted).

42

Id. at 236 (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995)).

43

Id. at 238.

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disability, resulting limitations, and necessary reasonable accommodations

often are not “open, obvious, and apparent.”44

B

It is this “intentional discrimination” requirement that dooms

Plaintiffs’ claims under either a disparate treatment or failure-to-

accommodate theory. While Officer Paley may have used poor judgment

when he tased Jevon, Plaintiffs have failed to create a genuine dispute on the

issue of whether Officer Paley intentionally discriminated against Jevon by

reason of his disability.

On appeal, Plaintiffs frame their ADA and § 504 claims as disparate

treatment claims. They point to Officer Paley’s declaration, in which he

stated that he wanted to keep Jevon inside the school because Jevon’s

disability made leaving the premises unsafe. According to Plaintiffs’ logic,

because Jevon’s disability motivated Officer Paley to keep him inside the

school and because he tased Jevon to keep him inside, a jury could reasonably

conclude Officer Paley discriminated against Jevon by reason of his disability.

But more is required to meet the intentional discrimination standard.

Officer Paley’s desire to keep Jevon inside the school does not rise to the level

of “something more than deliberate indifference” to Jevon’s disability. 45 In

fact, record evidence shows that Officer Paley’s desire to keep Jevon inside

the school arose from consideration of the vulnerabilities surrounding Jevon’s

disability, not from indifference, much less ill-will or discriminatory animus.

As the district court put it, “The treatment of a disabled student may be

_____________________

44

Taylor v. Principal Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996).

45

Plaintiffs argue that “the district court held Plaintiffs to an unduly high standard

for proving discriminatory intent, faulting Plaintiffs for failing to show that Defendants’

treatment of Jevon was ‘motivated by ill will, prejudice, or spite.’” But this is something of

a red herring as Defendants’ actions do not even rise to the level of “deliberate

indifference.”

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different from that of a nondisabled student, but different is not necessarily

discriminatory.” If different were always discriminatory, then even disability

accommodations would be discriminatory.

Against this logic, Plaintiffs argue that we must consider the method

that Officer Paley used to keep Jevon from exiting the building: tasing him

repeatedly. Again, the tasing was arguably excessive. However, based on the

summary judgment evidence, it was not indifference or hostility toward

Jevon’s disability that motivated Officer Paley when he tased Jevon, but a

desire to keep Jevon safe inside the school because of the vulnerabilities

caused by his disability. To show why this subtle distinction matters, consider

a hypothetical non-disabled student behaving similarly to Jevon who was

similarly considered, for whatever reason, unsafe to leave the school.

Plaintiffs have failed to produce evidence that Officer Paley would not have

tased such a non-disabled student.46

_____________________

46

Plaintiffs claim that, based on the evidence they produced, a finder of fact could

conclude that a non-disabled student would have been treated differently than Jevon.

Putting aside the fact that this argument does not speak to the intentional discrimination

requirement, Plaintiffs’ argument is a stretch. Plaintiffs’ summary judgment evidence

includes the school district disciplinary handbook, which provides that “[s]tudents who

leave campus at any time without parental permission and administrative approval shall be

considered truant and will be subject to disciplinary action.” Plaintiffs contend that because

nothing in the handbook allows a school official to restrain a student to prevent truancy, “a

finder of fact could conclude that the truancy policies that would ordinarily apply to a

nondisabled student attempting to leave campus were not applied to Jevon and that he was

instead subjected to a particularly violent form of restraint because he was disabled.” But

the lack of a specific policy allowing school officials to restrain students attempting to leave

school does not lead to a reasonable inference that a non-disabled student attempting to

leave campus would have been treated differently than Jevon. The policy disallows students

from leaving campus and simply does not specify methods by which officials can stop

students from leaving. This makes sense as different situations may call for different actions

from school officials. Thus, there is no evidence that a non-disabled person would not have

been tased in similar circumstances. And in fact, the record shows that Officer Paley was

involved in another incident in which he tased a non-disabled student in February 2017.

Although the student was not attempting to leave the school, the incident was similar in

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Plaintiffs further argue that Officer Paley’s statements in the

aftermath of the tasing show discriminatory intent. Immediately after the

tasing, Officer Paley said to Jevon as he lay on the ground: “I did not want to

tase you, but you do not run shit around here, you understand?” Officer Paley

subsequently explained, “I got tired of wrestling with him so I popped him.”

While these statements may have been inappropriate, they do not show

indifference or discriminatory animus toward Jevon’s disability. Indeed,

Officer Paley’s chosen language made no reference to Jevon’s disability and

was not traditionally associated with a protected disability. Plaintiffs have

thus failed to create a material dispute on the issue of intentional

discrimination in regard to their disparate treatment claim.

And to the extent Plaintiffs put forth a failure-to-accommodate claim,

it similarly fails. While Officer Paley said in his declaration that he had prior

knowledge of Jevon’s disability, there is no evidence that he had notice of its

resulting limitations or necessary accommodations. Plaintiffs do not contend that

Officer Paley had been privy to the meetings regarding limitations of and/or

accommodations for Jevon’s disability. Nor were the limitations or

accommodations “open, obvious, and apparent” to Officer Paley. In fact, he

had already witnessed the failure of staff’s attempts to orally de-escalate the

situation. There is no evidence that Officer Paley was aware or should have

been aware of a further accommodation that would have calmed Jevon down.

Plaintiffs have thus failed to create a material dispute on the issue of

intentional discrimination for their failure-to-accommodate claim.

We reiterate that Officer Paley’s use of his taser in this situation was

poor judgment, especially after Jevon had ceased struggling. However, § 504

of the Rehabilitation Act and Title II of the ADA are not the proper vehicles

_____________________

that Officer Paley deployed his taser to restrain and gain control over a student behaving

disruptively.

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for remedying “all unreasonable, inappropriate, unprofessional, and/or

unduly harsh conduct by public agents.”47

We AFFIRM the district court’s grant of summary judgment to

KISD on the ADA and § 504 claims.

IV

Finally, Plaintiffs argue that the district court misapplied our

precedent when it granted summary judgment to Officer Paley on the

substantive due process claim.48

In its opinion, the district court acknowledged that “[s]chool children

have a liberty interest in their bodily integrity protected by the Due Process

Clause of the Fourteenth Amendment, and . . . physical abuse by a school

employee violates that right.” But in granting summary judgment to Officer

Paley, it applied our holding in Fee v. Herndon, that “as long as the state

provides an adequate remedy, a public school student cannot state a claim for

denial of substantive due process through excessive corporal punishment.”49

_____________________

47

Wilson, 2022 WL 17604575, at *11.

48

Defendants contend that this argument is precluded by our previous opinion in

J.W. v. Paley, 860 F. App’x 926 (5th Cir. 2021) (per curiam), under law-of-the-case

doctrine. Under that doctrine, “when a court decides upon a rule of law, that decision

should continue to govern the same issue in subsequent stages in the same case.” Lindquist

v. City of Pasadena, 669 F.3d 225, 238 (5th Cir. 2012) (citation omitted). While our previous

decision discussed Fee, it did not “decide” the substantive due process issue. See J.W., 860

F. App’x at 928–29. It only decided the Fourth Amendment excessive force qualified

immunity issue. Thus, law-of-the-case does not apply. See Pegues v. Morehouse Par. Sch. Bd.,

706 F.2d 735, 738 (5th Cir. 1983).

49

Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citing Fee,

900 F.2d at 808). In Fee, we denied the substantive due process claim of a special-needs

student’s parents who alleged that their child was beaten so excessively for misbehaving

that he was forced to remain in psychiatric rehabilitation for months. 900 F.2d at 805–10.

We reasoned that when “the forum state affords adequate post-punishment civil or

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Plaintiffs contend that Fee is inapplicable because the tasing incident

cannot properly be defined as “corporal punishment.” The Supreme Court

has defined “corporal punishment” as the use of “reasonable but not

excessive force to discipline a child” that a teacher or administrator

“reasonably believes to be necessary for the (the child’s) proper control,

training, or education.”50 We’ve explained: “At bottom, fairly characterizing

an act as corporal punishment depends on whether the school official

intended to discipline the student for the purpose of maintaining order and

respect or to cause harm to the student for no legitimate pedagogical

purpose.”51

We have dismissed substantive due process claims under Fee “when

the offending conduct occurred in a disciplinary, pedagogical setting.”52 “In

contrast, we have allowed substantive due process claims against public

school officials to proceed when the act complained of was ‘arbitrary,

_____________________

criminal remedies” for corporal punishment, “such states have provided all the process

constitutionally due.” Id. at 808.

50

Ingraham v. Wright, 430 U.S. 651, 661 (1977).

51

Flores v. School Bd. DeSoto Par., 116 F. App’x 504, 510–11 (5th Cir. 2004).

52

T.O. v. Fort Bend Indep. Sch. Dist., 2 F.4th 407, 414 (5th Cir. 2021) (“For

example, we dismissed substantive due process claims (1) when a student was instructed to

perform excessive physical exercise as a punishment for talking to a friend; (2) when a

police officer slammed a student to the ground and dragged him along the floor after the

student disrupted class; (3) when a teacher threatened a student, threw him against a wall,

and choked him after the student questioned the teacher’s directive; (4) when an aide

grabbed, shoved, and kicked a disabled student for sliding a compact disc across a table;

and (5) when a principal hit a student with a wooden paddle for skipping class.” (citations

omitted)).

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capricious, or wholly unrelated to the legitimate state goal of maintaining an

atmosphere conducive to learning.’”53

Plaintiffs argue that the tasing incident was not corporal punishment

because “Paley was not trying to punish or discipline Jevon for an

infraction.” Officer Paley, on the other hand, focuses on the word “control”

in the Supreme Court’s definition of corporal punishment, arguing that he

was attempting to assert control over Jevon by restraining him with the taser.

Our precedent favors Officer Paley.

We have applied Fee in cases where, although the offending conduct

may not have been traditional “punishment,” it was intended to assert order

or control over a student for a legitimate pedagogical purpose. For instance,

in T.O. v. Fort Bend Independent School District, a student was removed from

his classroom due to disruptive behavior.54 A teacher who was walking by

positioned herself between the student and the door so he could not return

to the classroom.55 When the student tried to push the teacher so he could

get into the classroom, she threw him to the ground and placed him in a

chokehold.56 We applied Fee, explaining, “The facts alleged simply do not

suggest that T.O. was the subject of a ‘random, malicious, and unprovoked

attack,’ which would justify deviation from Fee.”57

_____________________

53

Id. at 414 (“For example, we held that a substantive due process claim could

proceed when a teacher allegedly molested a student, and when a teacher tied a student to

a chair for two days as part of an experimental technique.” (citations omitted)).

54

Id. at 412.

55

Id.

56

Id.

57

Id. at 415 (citation omitted).

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Similarly, this case involves disruptive behavior from Jevon and a

struggle to keep him from going through a door. And like the teacher in T.O.,

Officer Paley was not necessarily “punishing” Jevon but trying to restrain

him for the pedagogical purpose of maintaining order. Like the incident in

T.O., the tasing incident was not a “random, malicious, and unprovoked

attack.”

Campbell v. McAlister, while not published precedent, is also

particularly on point.58 The case concerned a five-year-old boy who was

“misbehaving” in class.59 Feeling they could not “control” the boy, his

teacher and the assistant principal summoned the help of a police officer,

Officer McAlister, to remove the boy from the classroom and escort him to

the principal’s office.60 The boy’s family alleged that the officer “slammed

[the boy] to the floor” and “dragged [him] along the ground to the principal's

office.”61 We applied Fee:

In this case, there is no question that McAlister’s use of force

to remove Dennis from his classroom w[as] rationally related

to legitimate school interests in maintaining order. As the

district court noted, and the Campbells apparently concede,

Texas provides civil and criminal post-deprivation remedies

for the excessive use of force by school officials. Thus, the

district court correctly concluded that the Campbells’s

substantive due process claim fails as a matter of law. 62

_____________________

58

No. 90-20675, 1998 WL 770706 (5th Cir. Oct. 20, 1998) (per curiam).

59

Id. at *1.

60

Id.

61

Id.

62

Id. at *5.

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Like Officer McAlister, Officer Paley is a law enforcement officer.

And in both cases, the officers were not engaged in traditional “punishment”

of a student, but used force for restraint purposes. In each case this restraint

was used for a legitimate pedagogical purpose—either transporting a

disruptive student to the principal’s office to limit disruption or keeping a

disruptive student inside the school due to safety concerns. While the force

used in each case may have been excessive, the purpose of such force was

“rationally related to legitimate school interests in maintaining order.”63

The cases that Plaintiffs cite are inapposite. One involved the sexual

molestation of a student by her teacher,64 and the other involved a teacher

tying a student to a chair for two days as part of an experimental teaching

technique,65 acts plainly “unrelated to any legitimate state goal.”66 This case

clearly falls on the T.O. and McAlister side of the spectrum.

Again, under Fee, claims for excessive corporal punishment are

precluded if the forum state provides adequate post-punishment civil or

criminal remedies. Texas provides such remedies.67

We AFFIRM the district court’s grant of summary judgment to

Officer Paley on the Fourteenth Amendment substantive due process claim.

V

Parents deserve to believe that their children, no matter their unique

needs, are safe at school. We are sympathetic to what Ms. Washington and

_____________________

63

Id.

64

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 445 (5th Cir. 1994) (en banc).

65

Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303, 305–06 (5th Cir. 1987).

66

T.O., 2 F.4th at 414.

67

McAlister, 1998 WL 770706, at *5.

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Jevon have endured. However, controlling precedent provides no remedy for

the claims they bring.

AFFIRMED.

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James E. Graves, Jr., Circuit Judge, dissenting in part:

I agree with the majority that the district court erred in subjecting

Jevon Washington’s disability discrimination claims to an exhaustion

requirement. But I disagree with the majority that Washington’s disability

discrimination claims are not viable on the merits. Further, because there are

genuine disputes of material fact sufficient to defeat summary judgment, I

would vacate and remand on the disability discrimination claims. Thus, I

respectfully dissent in part.

The district court denied summary judgment as to the excessive force

claim, saying that there were genuine disputes of material fact as to whether

the tasing was objectively unreasonable and whether qualified immunity

applied. But the district granted summary judgment as to Washington’s

other claims. In doing so, the district court found that Washington had failed

to exhaust his disability discrimination claims. Washington moved for

reconsideration on the basis that the district court erred by imposing an

exhaustion requirement. The district court denied the motion, reasserting

its exhaustion finding. The district court also found, in the alternative, that

Washington’s disability discrimination claims failed on the merits.

Specifically, the district court found that, “[t]he record evidence shows no

factual dispute material to determining that the defendants did not

intentionally discriminate against [Washington] because of his disabilities.”

Both the district court and the majority set out the requisite elements

for Washington to establish such a disability discrimination claim, and the

requirement that he prove the discrimination was intentional, or something

more than deliberate indifference, to recover damages. See T.O. v. Fort Bend

Indep. Sch. Dist., 2 F.4th 407, 417 (5th Cir. 2021); see also Delano-Pyle v.

Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002); and Cadena v. El Paso

Cnty., 946 F.3d 717, 724 (5th Cir. 2020). Though acknowledging that

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Washington was treated differently than a non-disabled student would have

been, the district court found that the “uncontroverted summary judgment

evidence undermines any inference” that Paley’s actions were “motivated

by ill will, prejudice, or spite” or “by reason of” Washington’s disabilities.

The majority now affirms that Washington is unable to establish

intentional discrimination, saying that, Paley “may have used poor

judgment” in repeatedly tasing Washington, but there is no dispute on

whether it was not intentional discrimination by reason of his disability.

However, the record here does not support such a conclusion.

Paley’s argument is contradictory, as is the majority’s resulting

analysis. For example, Paley admits knowing that Washington was disabled

but then claims he had no knowledge of Washington’s specific disability.1

However, that claim is contradicted by Paley’s additional claim that he tased

Washington repeatedly because his disability made leaving the premises

unsafe. If Paley had no knowledge of Washington’s specific disability, then

he would not know whether his disability made leaving the premises unsafe

or whether repeatedly tasing him would be an appropriate accommodation.

Similarly, the majority says, “based on summary judgment evidence,

it was not indifference or hostility towards Jevon’s disability that motivated

Officer Paley when he tased Jevon, but a desire to keep Jevon safe inside the

school because of the vulnerabilities caused by his disability.” Again, if Paley

had no knowledge of Washington’s specific disability, then he had no

knowledge of any specific vulnerabilities or accommodations. 2 Further, the

_____________________

1

Paley’s claim is further contradicted by his admission that he knew of multiple

specific incidents.

2

This is further supported by the majority’s analysis of Washington’s failure-to-

accommodate claim, wherein it concludes that “there is no evidence that [Paley] had notice

of its resulting limitations or necessary accommodations.” (Emphasis original).

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majority fails to cite any authority for its attempt to equate repeatedly tasing

a disabled student with a disability accommodation.

The majority also fails to give sufficient weight to Paley’s explicit

statements as to exactly why he repeatedly tased Washington, conceding only

that they “may have been inappropriate.” These statements are much more

than inappropriate. Instead, they directly contradict Paley’s claim that he

repeatedly tased Washington to protect him. Paley told Washington, “I did

not want to tase you, but you do not run shit around here.” Paley then said,

“I got tired of wrestling with him so I popped him.” Significantly, Paley did

not say anything about tasing Washington repeatedly to keep him safe or as

an accommodation. Paley’s actual statements support Washington’s

argument that he was tackled and repeatedly tased because of his disability.

The record clearly establishes that Washington was attempting to leave

because of his disability. The issue is whether Paley tackled and tased him

repeatedly because he believed that it was necessary to keep Washington safe,

as he says now, or because of indifference, ill will, hostility or discriminatory

intent. Paley’s statements that “you do not run shit around here” and “I got

tired of wrestling with him so I popped him” fall squarely into the latter

category.

Moreover, nothing Paley said prior to tasing Washington provides

support for Paley’s claim that he was only concerned about Washington’s

safety. As recounted by the majority, Paley threatened to tase Washington,

who screamed that he wanted to go home. Paley then moved away and told

staff members to “let him go,” as if Washington was going to be allowed to

leave. Once Washington walked outside, Paley then repeatedly tased him,

even after he was lying face down on the ground.

As the majority concedes, we must view the evidence in the light most

favorable to Washington and draw all reasonable inferences in his favor. See

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Kariuki v. Tarango, 709 F. 3d 495, 501 (5th Cir. 2013). When we do that,

there are clearly genuine disputes of material fact sufficient to overcome

summary judgment on the disability discrimination claims. See Fed. R. Civ.

P. 56(a). Because I would vacate and remand on these claims, I respectfully

dissent in part.

25